Child Custody in the Absence of Contention

When I first heard of this, I wondered: while there is a fairly robust body of Halachah on child custody, as far as I know, all the cases discussed involve contention over custodial rights between the father, mother and / or members of their respective families. I am aware of no precedent for a Beis Din involving itself in the domestic arrangements of a family in which the parents are happily married and not contending over custody. I raised this question with my Havrusa, who suggested that a Beis Din could nevertheless take action based upon the principle of בית דין אביהם של יתומים הוא, but I still wanted an authoritative source or precedent.

Serendipitously, a mere several days later I noticed that Rabbi Zvi Gartner (author of כפייה בגט and member of the editorial board of אוצר הפוסקים) makes precisely this point:

The Theoretical Underpinning Of the Halachos of Child Custody

R. Gartner’s initial restriction is based on his remarkable outlook on the Halachah of custody, that although the entire body of law on the topic revolves around the question of טובת הילד, the fundamental issue is actually the adjudication of the conflicting rights of the parents and their families, and we are really invoking the issue of the child’s welfare only as a means of choosing between these rights.

Rabbi David Cohen (Rabbi of Gvul Ya’avez), on the other hand, takes precisely the opposite view of the matter. He maintains as a matter of course that the Beis Din’s primary concern is the interest of the child, and that the parents’ agreement cannot prevent the Beis Din from deciding according to that interest:

This is the letter to which R. Gartner was responding in his previously cited remarks, by explaining that the child’s interest is merely used to resolve the conflicting claims of the parents, but is not actually our primary concern. R. Gartner is also unconvinced that the Beis Din is indeed free to reopen a custody case that it has already decided:

As we shall see below, Mabit seems to explicitly side with R. Cohen and Tene, ruling that the Beis Din certainly will return a child to the custody of a mother who has previously accepted an alternate arrangement, since we are concerned for the welfare of the child, and there is no difference between our initial consideration of the matter and our subsequent reconsideration thereof.

Rabbi (Prof.) Michael J. Broyde has argued that this fundamental question, whether the Halachas is primarily concerned with the interest of the child or with the rights of his parents and their families, is actually a disagreement between Rosh and Rashba:

It is the thesis of this article that there are two implicit basic theories used in Jewish law to analyze child custody matters and that different rabbinic decisors are inclined to accept one or the other. Indeed, which of these theories one adopts substantially affects how one decides many “hard” cases. One of these theories grants parents certain “rights” regarding their children while also considering the interests of the child, while the other theory focuses nearly exclusively on the best interests of the child. …

The initial question in all child custody determinations is frequently unstated: by what “right” do parents have custody of their children? As explained below, two very different theories, one called “parental rights” and one called “best interest of the child” exist in Jewish law. These two theories are somewhat in tension, but also lead to similar results in many cases, as the best interests of the child often will coincide with granting parents rights.

There is a basic dispute within Jewish law as to why and through what legal claim parents have custody of their children. Indeed this dispute is crucial to understanding why Jewish law accepts that a “fit” parent is entitled to child custody — even if it can be shown that others can raise the child in a better manner.

Rabbi Asher ben Yecheil (Rosh), in the course of discussing the obligation to support one’s children, adopts what appears to be a naturalist theory of parental rights. R. Asher asserts two basic rules. First, there is an obligation (for a man) to support one’s children and this obligation is, at least as a matter of theory, unrelated to one’s custodial relationship (or lack thereof) with the child or with one’s wife or with any other party. A man who has children is biblically obligated to support them. Flowing logically from this rule, R. Asher also states that, as a matter of law, in any circumstance in which the marriage has ended and the mother is incapable of raising the children, the father is entitled to custody of his children. Of course, R. Asher would agree that in circumstances in which the father is factually incapable of raising the children — is a legally unfit father — he would not be the custodial parent. However R. Asher appears to adopt the theory that the father is the presumptive custodial parent of his children based on his obligations and rights as a natural parent, subject to the limitation that even a natural parent cannot have custody of his children if he is factually unfit to raise them. For the same reason, in situations where the Sages assigned custody to the mother rather than the father, that custody is based on a rabbinically ordered transfer of rights. While this understanding of the parent’s rights is not quite the same as a property right, it is far more a right (and duty) related to possession than a rule about the “best interest” of the child. The position of R. Asher seems to have a substantial basis in the works of a number of authorities.7

This seems to me to be a serious misrepresentation of the rulings of Rosh. R. Broyde cites two different responsa of Rosh.8. The former9, as R. Broyde himself acknowledges, merely establishes the father’s responsibility to pay for his son’s nutrition (even one born out of wedlock), and has nothing at all to do with custody. The latter grants the father custody against the mother, but he is explicit that the reason for this is not related to his obligation to provide his children with nourishment!

So contra R. Broyde, the latter portion of the responsa is explicitly concerned with the girl’s interest, and the former invokes the father’s spiritual obligations toward his son, not his material ones. Moreover, I think that it is clear that even with regard to those spiritual obligations, Rosh’s real point is that the son will benefit from having those attentions paid to him; this is evident from his parallel assertion that a girl’s place is with her mother since she will teach her “צניעות וארח הנשים”. There is no formal obligation upon a mother to do so, and it seems clear that Rosh merely means that it is to the girl’s benefit that she obtain a proper moreal upbringing, and similarly for the son to receive such from his father.

R. Broyde continues:

There is a second theory of parental custody in Jewish law, the approach of Rabbi Solomon ben R. Aderet (Rashba).

R. Aderet indicates that Jewish law always accepts — as a matter of law — that child custody matters (upon termination of the marriage) be determined according to the “best interests of the child”. Thus, he rules that in a case where the father is deceased, the mother does not have an indisputable legal claim to custody of the children. Equitable factors, such as the best interest of the child, are the sole determinant of the custody. In fact, this responsum could well be read as a general theory for all child custody determinations. R. Aderet accepts that all child custody determinations involve a single legal standard: the best interest of the child, regardless of the specific facts involved. According to this approach, the “rules” that one encounters in the field of child custody are not really “rules of law” at all, but rather the presumptive assessment by the talmudic Sages as to what generally is in the best interest of children.

I am not at all convinced that there’s necessarily any difference between the perspectives of Rashba and Rosh. Here is the responsum of Rashba:

So we see that Rashba’s basic stance is nearly identical to that of Rosh – girls are to be raised by their mothers, for they teache them appropriate feminine conduct and modesty, while sons should be raised by male relatives, for they will teach them Torah and masculine ways. [While Rosh is referring specifically to the father, and he invokes his obligation to teach his son Torah and train him in Mizvos, while Rashba is referring to other male relatives, and he therefore does not mention an actual obligation on their part, it nevertheless seems to me that Rosh, too, may not actually be insisting on the existence of an actual, formal obligation, as I have argued previously, based on the analogy to the mother.]

The fundamental question raised by R. Broyde, though, is whether Rashba’s concluding principle that we must always seek the best interest of the orphans is compatible with the view that custody is primarily about the rights of the parents and their respective relatives. R. Gartner insists that even though the Poskim have emphasized a concern for the interest of the child, nevertheless “טובת הילד אינה ערך בפני עצמה … כל עיקרה מכריע בין ההורים”. I think that it must be conceded that Rashba, with his citation of the principle that “בית דין אביהם של יתומים”, does seem to be assigning their benefit a larger role than merely the basis for a rule for the reconciliation of the conflicting claims of the potential custodians.

R. Broyde continues with a discussion of the question with which we began this essay: will a Beis Din remove a child from his parents’ custody if it believes that he will be better off elsewhere?

An enormous theoretical difference exists between R. Asher and R. Aderet. According to R. Aderet, the law allows transfer of Custodial rights (even from their parents) in any situation where it can be shown that the children are not being raised in their best interests and another would raise them in a manner more in their best interest. According to R. Asher, parents (or at least fathers) have an intrinsic right to raise their progeny. In order to remove children from parental custody, it must be shown that these parents are unfit to be parents and that some alternative arrangement to raise these children consistent with the parent’s wishes and lifestyle (either through the use of relatives as agents or in some other manner) cannot be arranged.

In another version of his article, R. Broyde is somewhat more circumspect, acknowledging the point that R. Gartner and I have made about the utter lack of precedent for such an action on Beis Din’s part, and reiterating the fact that this argument is merely theoretical:

An enormous theoretical difference exists between R. Asher and Rashba. Although there is no record of any rabbinic directive to transfer custodial rights from parents in a situation where it can be shown that the children are not being raised in their best interests and another would raise them in a better manner, yet at least in theory, that would be the position of Rashba.12

As we have seen, R. Gartner uses this very absence of any source in the literature for the involvement of Beis Din in the absence of contention between potential custodians to prove his basic thesis that the child’s interest is merely a factor used to resolve conflicting claims of various relatives, and not a consideration in its own right.

R. Broyde concludes this section of his article:

This legal dispute is not merely theoretical: the particular responsa of Rabbis Asher and Aderet, elaborating on these principles, contain a distinct contrast in result. R. Aderet rules that when the father is deceased, typically it is in the best interest of the child to be placed with male relatives of the father rather than with the mother; R. Asher rules, that as a matter of law, when the mother is deceased, custody is always to be granted to the father (unless the father is unfit). To one authority, the legal rule provides the answer, and to another equitable principles relating to best interest do.

These two competing theories, and how they are interpreted by the later authorities, provide the relevant framework to analyze many of the theoretical disputes present in proto-typical cases of child custody disputes. Indeed, it is precisely the balance between these two theories that determines how Jewish law awards child custody in many cases.

Later in the article, R. Broyde writes:

[A]n examination of the responsa literature and decisions of the Rabbinical Courts in Israel does indicate that two schools of thought exist on this issue. Many decisors rule that these presumptive rules are relatively strong ones and can only be reversed when it is obvious that the parent who would be granted custody (or already has custody) is unfit. Other decisors adopt a lower standard and permit granting custody contrary to the talmudic rules when these presumptions are not in the best interest of the specific child whose case is being adjudicated. …

The contrary approach, based on the best interest of the child, can be found in the responsa of Rabbi Moshe ben Yosef Trani (Mabit) and Rabbi Shmuel ben Moshe (Maharashdam). Mabit describes a mutually agreed upon child custody arrangement between divorced parents which one parent now seeks to breach. Mabit states that it appears to him that the agreement is not in the best interest of the children and thus ought no longer be enforced and that custody is to be granted contrary to the agreement. He understands the “standard of review” to be the best interest of the child and not unfitness of the parent. So too, Maharashdam evaluates the correctness of a (widowed) mother’s decision to move a child to another city away from the family of the father based on the best interest of the child. He concludes by prohibiting such a move, as it is not in the child’s best interest. This approach can also be found in the works of many additional authorities. Both Shochatman and Warburg maintain that this is the predominant school of thought among judges in the Israeli Rabbinical courts who often issue statements supporting this approach. For example, one rabbinical court noted: The principle in all child custody decision is the best interest of the child as determined by the Beit Din. (emphasis added) or Child custody is not a matter of paternal or maternal rights, but is determined according to the best interest of the child …. Beit Din is authorized to determine what is in the best interest of the child … according to the particular conditions of each case. (emphasis added)

Since Mabit does indeed seem to endorse here a strong “child’s best interest” stance, I was quite puzzled when R. Broyde subsequently places Mabit squarely in the camp of Rosh, maintaining that he “addresses these issues from the perspective of parental rights”:

Four basic legal theories have been set forth. The first asserts that the basic rights and duties of parents are obligations and privileges that are similar to inheritable rights and duties. Thus, in a case where a man who would have custody of his children were he alive dies, his wife, his father inherits the right-obligation-mitzvah-duty to educate the grandchildren; along with that obligation-right-duty-mitzvah he is given custody. Similarly too, if a woman who would have custody were she alive dies, her mother would be entitled to custody assuming she is fit, even if others are more fit.

A second theory can be found in Rabbi Mordechai ben Judah Halevi, Responsa Darchai Noam (E.H. 26), in relation to a situation common in our society. The responsum concerns a man who had just ended his second marriage; his first marriage ended in divorce, and his second marriage ended in the death of his second wife, with whom he had had a number of children. Being unable to take care of these children himself, he arranged for them to be raised by his first wife, whose marriage with him had ended in divorce. The children’s maternal grandparents, from whom the husband was estranged, sought custody. The author of Darchai Noam ruled that since the father was alive, his rights to the children still existed and so long as his custodial arrangements were satisfactory, others (perhaps even others capable of providing a better home) could not seek to subrogate his rights.

According to this approach, relatives have greater rights solely because they are most likely to be appointed agents of the parents. Thus, when a particular parent is alive and entitled to presumptive custody of a child, but is in fact incapable of being the custodial parent, the primary legal factor used to determine which stranger shall receive custody is who is designated as an agent of the parent. Thus, this responsa adopts a theory of agency rather than guardianship as it relates to parental rights.

While the author of the responsa does not phrase the discussion precisely this way, it is manifest that his analysis is predicated on the ability of the father to appoint someone to watch his children (in the absence of the mother). This approach accepts the ruling of R. Asher discussed above, as it addresses these issues from the perspective of parental rights. Such a position is explicitly adopted by Rabbi Moshe Trani who primarily analyzes custody of children as matter of inheritance of rights and agency law according to Jewish law.

So here we are told that Mabit “explicitly adopt[s]” an approach that “accepts the ruling of R. Asher discussed above, as it addresses these issue from the perspective of parental rights”, and that he “primarily analyzes custody of children as matter of inheritance of rights and agency law according to Jewish law”, in apparent direct contradiction to his other responsum cited by R. Broyde, in which he sides with Rashba and endorses the “child’s best interest” stance!

In actuality, though, it appears that some sort of mistake has occurred here, for Mabit in this second responsum says nothing at all about inheritance and parental rights, and on the contrary, he actually quotes Rashba’s formulation of the “child’s best interest” principle!

Rabbi Broyde appears to have published a version of this article in the Journal of Halacha and Contemporary Society “Child Custody in Jewish Law: A Conceptual Analysis”, available here: (PDF), as well as in the Jewish Law Association Studies, VII (The Paris Conference Volume, S. M. Passamaneck and M. Finley ed.), “Child Custody in Jewish Law: A Pure Analysis” (see here). My excerpts are taken from the version posted at Jlaw, except where specified otherwise. [↩]